FOURTH SECTION
DECISION
Application no. 43695/05
Aneta TCACIUC against Romania
and 5 other applications
(see list appended)
The European Court of Human Rights (Fourth Section), sitting on 4 September 2018 as a Committee composed of:
Paulo Pinto de Albuquerque, President,
Egidijus Kūris,
Iulia Motoc, judges,
and Andrea Tamietti, Deputy Section Registrar,
Having regard to the above applications lodged on the various dates indicated in the appended table,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,
Having deliberated, decides as follows:
THE FACTS
1. A list of the applicants is set out in the appendix.
2. The Romanian Government (“the Government”) were represented by their Agent, Ms C. Brumar, from the Ministry of Foreign Affairs.
A. The circumstances of the cases
3. The facts of the cases, as submitted by the parties, may be summarised as indicated in the appended table.
4. All applicants were engaged in civil proceedings subject to judicial stamp duty. Their non-observance of the obligation to pay judicial stamp duty led to the dismissal of their actions or appeals by final court decisions. The applicants in applications nos. 10681/07 and 13599/08 lodged requests with the courts for a re-examination or an exemption from the payment of judicial stamp duty, which were either allowed in part or rejected.
B. Relevant domestic law
5. The procedure for lodging a request with a court for a re-examination, an exemption, a reduction, an instalment plan or to postpone the payment of judicial stamp duty, in force at the material time, was stipulated by Law no. 146/1997 on stamp duty, as amended by the Law no. 195/2004, in force from 29 May 2004, and Ministry of Justice Order no. 760/1999 on the enforcement of Law no. 146/1997, as well as by the former Code of Civil Procedure (see Iorga v. Romania, no. 4227/02, §§ 22-25, 25 January 2007, and Rău and Gâlea v. Romania (dec.), no. 43838/10, §§ 12-13, 3 October 2017).
6. The relevant provisions of Law no. 146/1997 on stamp duty, as amended by Law no. 195/2004, read as follows:
Article 1
“Actions and claims lodged with the courts ... shall be subject to stamp duty ... the calculation of which, except in the circumstances provided for by law, may differ, depending on whether the object of the application can be valued financially.”
Article 2
“1. Actions and claims lodged with the courts [in respect of matters] which can be valued financially are subject to the following stamp duty:
... if the object of the action or claim is valued at more than RON ... the stamp duty is RON ... plus ... % of the amount which is over RON ...;
...
3. Stamp duty is calculated on the basis of the value of the object of the action or claim, as stated in their application ...”
Article 11
“1. Appeals or appeals on points of law lodged against court judgments are subject to stamp duty of 50% of ... the stamp duty payable for the contested sum in the case of an application [in respect of matters] which can be valued financially.
...”
Article 18
“1. The amount of stamp duty payable is set by the court ...
2. An applicant has three days from the date on which the court calculated the sum due or notified the applicant of the sum due to ask the same court to re-examine the way in which the stamp duty was calculated.
3. The request for re-examination is heard ... in chambers by a different bench of judges and without summoning the parties.
4. If the request for re-examination is allowed, the stamp duty is returned in full or in part, as the case may be.”
Article 20
“3. Non-payment of stamp duty until the date set by court leads to annulment of the action or request.”
Article 21
“1. A court may grant an exemption, a reduction, an instalment plan or postpone the payment of stamp duty in accordance with the conditions set out in Articles 74-81 of the Romanian Code of Civil Procedure ...”
7. The relevant provisions of the former Code of Civil Procedure, in force at the time, are as follows:
Article 74
“The court may grant legal aid to anyone who cannot cover the trial costs without endangering the family’s or his or her own livelihood.”
Article 75
“Legal aid includes:
1. granting an exemption, a reduction, an instalment plan or postponing the payment of stamp duty ...;
Legal aid may be granted at any time during the trial, in full or in part.”
Article 76
“1. In the circumstances provided for under Article 75 § 1 (1), an application for legal aid shall be made to the court in writing ... in accordance with the law.”
Article 77
“The application [for legal aid] shall include ... written proof of the applicant’s income ...
The court shall examine the application and may request clarifications and evidence from the parties or written information from the competent authorities ...
The court shall examine the application in chambers without summoning the parties and deliver an interlocutory judgment...”
Article 79
“The interlocutory judgment mentioned in Article 77 § 3 ... is not amenable to any form of appeal.”
Article 80
“The right to [legal] assistance ceases on the death of the party or on the improvement of his or her wealth.”
COMPLAINTS
8. All applicants alleged under Article 6 § 1 of the Convention that their right of access to a court had been breached as their actions had been rejected for non-payment of judicial stamp duty. Some applicants also raised other complaints under the provisions of the Convention (see paragraph 32 below).
THE LAW
A. Joinder of the cases
9. Having regard to the similar subject matter of the applications, the Court finds it appropriate to order their joinder (Rule 42 § 1 of the Rules of Court).
B. Complaint under Article 6 § 1 of the Convention concerning the obligation to pay judicial stamp duty
10. The applicants complained that the domestic courts had breached their right of access to a court, relying on Article 6 § 1 of the Convention, which states, in so far as relevant:
“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”
1. Arguments by the Government
11. The Government firstly objected that the applicants in applications nos. 43695/05, 26496/07, 13987/08 and 17328/09 had failed to exhaust domestic remedies, because they had not lodged requests for a re‑examination or legal aid consisting of an exemption, a reduction, an instalment plan or postponing the payment of judicial stamp duty, or had lodged their request outside the time-limit set by law.
12. The Government further contended that in application no. 13599/08 the complaint of a violation of the right of access to a court had been raised for the first time in a letter sent to the Court outside the six-month time-limit set by Article 35 § 1 of the Convention.
13. As regards all the applications the Government rejected the applicants’ allegations, submitting that their right of access to a court had not been infringed, owing to their particular circumstances.
2. The Court’s assessment
(a) General principles
14. The general principles concerning an applicant’s right of access to a court have been summarised in the case of Lupeni Greek Catholic Parish and Others v. Romania [GC] (no. 76943/11, §§ 84-89, ECHR 2016 (extracts)). Cases concerning the imposition of court fees include, among other authorities, Kreuz v. Poland (no. 28249/95, §§ 52-60, ECHR 2001‑VI) and Iorga v. Romania (no. 4227/02, §§ 35 and 39, 25 January 2007).
15. The Court points out that a restriction placed on access to a court or tribunal will not be compatible with Article 6 § 1 unless it pursues a legitimate aim and there is a reasonable relationship of proportionality between the means employed and the legitimate aim sought to be achieved (see Kreuz, cited above, § 55).
16. The Court has already found that the requirement to pay fees to civil courts in connection with claims they are asked to determine cannot be regarded as a restriction on the right of access to a court that is incompatible per se with Article 6 § 1 of the Convention.
It reiterates, however, that the amount of fees assessed in the light of the particular circumstances of a given case, including the applicant’s ability to pay them, and the stage of the proceedings at which that restriction has been imposed are factors which are material in determining whether or not a person enjoyed his right of access and had a “... hearing by [a] tribunal” (ibid., § 60).
17. When assessing compliance with the above‑mentioned standards, the Court’s task is not to substitute itself for the competent domestic authorities in determining the most appropriate means of regulating access to justice, nor to assess the facts which led those courts to adopt one decision rather than another. The Court’s role is to review under the Convention the decisions that those authorities have taken in the exercise of their power of appreciation and ascertain whether the consequences of those decisions have been compatible with the Convention (see Iorga, § 40, and Kreuz, § 56, both cited above).
18. The Court has already noted that, under Romanian law, in proceedings that are pecuniary in nature stamp duty is determined as a percentage of the value of the claim. It is therefore proportionate to the amount claimed. In addition, the aforementioned system of court fees pursued a legitimate aim because it sought to limit abuses of process and to raise funds which could be used towards the budget of the justice system (see Iorga, cited above, § 41, and Rău and Gâlea v. Romania (dec.), no. 43838/10, § 35, 3 October 2017).
19. The Court further noted that from 2004 the domestic courts had jurisdiction over the applicants’ requests for a re‑examination, an exemption, a reduction, an instalment plan or to postpone the payment of stamp duty, in accordance with their particular situation. Moreover, individuals were able to challenge the amount of stamp duty directly before a tribunal (see Iorga, cited above, § 50, and contrast Weissman and Others v. Romania (dec.), no. 63945/00, 28 September 2004, concerning the former legislative scheme).
20. The procedure instituted in 2004 set out clearly the situations in which stamp duty would be payable, the calculation methods, the consequences of non‑payment, and the means to obtain a re-examination or a concession related to the obligation. In these circumstances, litigants could reasonably expect the courts to apply to their cases the rules concerning stamp duty. In addition, they could ask the court for a re‑examination of its decision regarding payment of stamp duty pursuant to Article 18 of Law no. 146/1997, as amended (see paragraph 6 above). Furthermore, Article 21 of the above-mentioned law offered the domestic courts the procedural means to examine requests for concessions on the payment of stamp duty based on documents and information from the parties.
21. Accordingly, the domestic courts were in principle better placed to settle a procedure to obtain a re-examination of stamp duty or legal aid initiated after 2004 (see Rusen v. Romania, no. 38151/05, §§ 32-34, 8 January 2009). The Court saw nothing to support the idea that legal-aid proceedings were bound to fail and could not have possibly remedied the situation complained of by applicants (see Rău and Gâlea, cited above, § 40 in fine). There remains to be determined in each case whether the domestic court proceeded with an in-depth assessment of the evidence and took into account the particular circumstances of the case (see Rusen, cited above, §§ 35-36).
22. In that connection, the Court reiterates that States are exempted from answering before an international body for their acts until they have had an opportunity to put matters right through their own legal system, and that those who wish to invoke the supervisory jurisdiction of the Court as concerns complaints against a State are thus obliged to use first the remedies provided by the national legal system (see, among many other authorities, Gherghina v. Romania (dec.) [GC], no. 42219/07, § 84, 9 July 2015).
(b) Application of these principles in applications nos. 43695/05, 26496/07, 13987/08 and 17328/09
23. The Court takes note that the applicants in applications nos. 43695/05, 26496/07 and 17328/09 did not lodge with the domestic courts requests for a re‑examination of the stamp duty or legal aid, and in addition, that the applicant in application no. 13987/08 lodged such a request solely in appeal outside the time-limit set by law.
24. Furthermore, the Court notes that these applicants have not put forward any arguments as to why such a procedure would have been inadequate or ineffective in the particular circumstances of their cases.
25. Having regard to the subsidiarity of the Convention system, the Court finds that the applicants in applications nos. 43695/05, 26496/07, 13987/08 and 17328/09 have failed to exhaust domestic remedies. Their complaint under Article 6 § 1 concerning the obligation to pay judicial stamp duty is thus declared inadmissible under Article 35 §§ 1 and 4 of the Convention.
(c) Application of these principles in applications nos. 10681/07 and 13599/08
26. The Court considers that it is not necessary to examine separately the objection raised by the Government in connection with application no. 13599/08 (see paragraph 12 above), since the complaint is in any event inadmissible, along with the complaint in application no. 10681/07, for the reasons given below.
27. In those cases, the applicants challenged the payment obligation or lodged requests for an exemption from the payment of stamp duty (see Appendix). The question of payment of judicial stamp duty was raised at various stages of the proceedings, the applicants being held to comply with this requirement when registering the civil action and/or on appeal. It is thus to be examined whether a fair balance was struck between preserving the well-functioning of the judiciary and safeguarding the interests of litigants in bringing a claim before the courts.
28. The applicant in application no. 13599/08 contested the very obligation to pay the amount set by the domestic courts as stamp duty. The Court observes that the domestic courts assessed the nature of the applicant’s claim and the applicable law when concluding on the amount to be paid as judicial stamp duty, there being no evidence in the documents submitted by the parties of any unfairness of the proceedings. In addition, the Court takes note that the applicant did not complain of an inability to pay the judicial stamp duty (contrast Iorga, cited above, § 18).
29. The Court notes that in application no. 10681/07 the domestic courts granted a concession on the payment of judicial stamp duty, in accordance with the particular circumstances of the case. Their conclusion was not merely hypothetical, but based on evidence proving the applicant’s financial situation. In addition, the amount of judicial stamp duty imposed on the applicant could not be regarded as unreasonable or excessive (see Appendix). This situation is to be distinguished from other cases in which applicants were required to pay substantial sums in court fees (see Weissman and Others v. Romania, no. 63945/00, § 39, ECHR 2006‑VII (extracts), and Kreuz, cited above, §§ 61-67). Nevertheless, the applicant did not comply with the obligation to pay stamp duty set by the court.
30. Having regard to the particular circumstances in applications nos. 10681/07 and 13599/08, the domestic courts’ decisions on the obligation to pay stamp duty do not appear arbitrary or manifestly unreasonable when interpreting the law imposing the payment of stamp duty or when assessing the amount of fees, the applicants’ ability to pay them and the stage of the proceedings at which the obligation was imposed.
31. It follows that this complaint is manifestly ill-founded and must be dismissed pursuant to Article 35 §§ 3 and 4 of the Convention.
C. Remaining complaints
32. All the applicants, save for the applicant in application no. 43695/05, also raised further complaints under Articles 3, 6 (§§ 1 and 3), 8, 14 and 18 of the Convention, as well as under Article 1 of Protocol No. 1 and Article 1 of Protocol No. 12.
33. The Court has examined the complaints as submitted by the applicants and considers that, in the light of all the material in its possession and in so far as the matters complained of are within its competence, they either do not meet the admissibility criteria set out in Articles 34 and 35 of the Convention or do not disclose any appearance of a violation of the rights and freedoms enshrined in the Convention or the Protocols thereto.
34. It follows that this part of the applications must be rejected in accordance with Article 35 § 4 of the Convention.
For these reasons, the Court, unanimously,
Decides to join the applications;
Declares the applications inadmissible.
Done in English and notified in writing on 27 September 2018.
Andrea TamiettiPaulo Pinto de Albuquerque
Deputy RegistrarPresident
APPENDIX
No.
Application no.
Lodged on
Applicant
Date of birth
Place of residence
Represented by
Subject-matter of court proceedings
43695/05
17/03/2005
Aneta TCACIUC
04/09/1962
Suceava
Civil action for pecuniary damage (in amount of approximately EUR 15,300,000) lodged by the applicant against the county police inspectorate, the public finances office and their employees - obligation to pay for the civil action judicial stamp duty in the amount of ROL 7,028,148,000 (EUR 152,848.96) and for the appeal in amount of ROL 35,500 (EUR 0.77);
No request for a re-examination of the payment of judicial stamp duty - by a final decision of 4 October 2005, the High Court of Cassation and Justice rejected the applicant’s action and appeal for non-payment of judicial stamp duty.
10681/07
15/02/2007
Vergil COSTIN
27/04/1940
Cristești
Civil action for recovery of property valued at ROL 60,000,000 (EUR 1,290.74), pecuniary and non‑pecuniary damage in amount of EUR 10,000, lodged by the applicant against an individual - obligation to pay for the civil action judicial stamp duty in the amount of ROL 23,550,160 (EUR 512.17); upon the applicant’s demand for an exemption from the payment of judicial stamp duty, and taking into account that his monthly pension was of ROL 3,357,000 (EUR 73), the court reduced the amount to ROL 4,000,000 (EUR 87) and set an instalment plan of five payments;
The applicant paid only ROL 90,000 (EUR 2) - by a final decision of 30 November 2006, the Mureș County Court rejected the applicant’s appeal for non-payment of judicial stamp duty.
26496/07
18/06/2007
S.C. JOBOLOCT COM S.R.L.
Represented by
Iosef Grigore BOLOCAN
Brașov
S.C. Restart S.P.R.L.
Brașov
Represented by Radu Mircea CIOBOTAR
Brașov
Commercial action for pecuniary damage lodged by a company against the applicant company for an amount of USD 796,671 (EUR 680,970) - allowed by the first instance court;
Applicant company’s obligation to pay judicial stamp duty in the amount of RON 12,348.32 (EUR 2,685.53) in an appeal; no request for a re‑examination of the payment of judicial stamp duty - by a final decision of 15 February 2007, the High Court of Cassation and Justice rejected the applicant company’s appeal for non-payment of judicial stamp duty.
13599/08
13/03/2008
Niculina MANEA
03/09/1951
Brăila
Civil action for pecuniary damage (in the amount of approximately EUR 33,300) lodged by the applicant against the State - obligation to pay judicial stamp duty in the amount of RON 7,956.52 (EUR 1,730.39);
Applicant’s request for the court to find that she was exempted from the payment of judicial stamp duty - dismissed by the court on account of the fact that the law expressly provided for the payment of judicial stamp duty; no personal circumstances regarding the inability to pay the stamp duty were invoked by the applicant - by a final decision of 31 January 2008, the Galați Court of Appeal rejected the applicant’s appeal for non-payment of judicial stamp duty.
13987/08
13/03/2008
Șerban Andrei Dimitrie PRETOR
06/03/1950
Bucharest
Civil action for partition of an inheritance, valued at approximately EUR 98,250 lodged by an individual against the applicant - allowed by the first-instance court;
Applicant’s request for a re-examination of the payment of judicial stamp duty in the amount of RON 410.28 (EUR 89.23) in an appeal, considering that he was exempted from this obligation – dismissed by the appellate court for being lodged outside the time-limit set by law;
Further obligation of the applicant to pay judicial stamp duty for the appeal on points of law; no request for a re-examination of the payment of judicial stamp duty - the court took note that the applicant did not comply with the obligation of quantifying his claim and of paying judicial stamp duty for the appeal on points of law - by a final decision of 17 September 2007, the Bucharest Court of Appeal rejected the applicant’s appeal for non-payment of judicial stamp duty.
17328/09
21/05/2008
Mihai NICULESCU
12/04/1940
Bucharest
Civil action for pecuniary damage in amount of RON 20,500 (EUR 4,410) lodged by the applicant against State authorities - obligation to pay judicial stamp duty in the amount of RON 1,296.2 (EUR 281.9);
No request for a re-examination of the payment of judicial stamp duty - by a final decision of 6 November 2007, the Bucharest County Court rejected the applicant’s action and appeal for non-payment of judicial stamp duty.
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